## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 17 - 00206 - CR

MICHAEL DONTE DUNN APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 372ND DISTRICT COUR T OF TARRANT COUNTY

TRIAL COURT NO. 1436 656D

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION A jury found Appellant Micha el Donte Dunn guilty of a ggravat ed kidnapping and attempted sexual a ssault , and the trial court sentenced him to forty

- five years’ confinement for aggravated kidnapping and fifteen years’ confinement for attempted sexual assault . Dunn raises four issues o n appeal.

1 See Tex. R. App. P. 47.4.2

His first two issues challenge the sufficiency of the evidence primarily concerning his intent to commit the se offenses , his third issue presents an ineffective

assistance

- of

- counsel challenge , and his fourth issue contends that the trial court abused its discretion in failing to conduct a hearing on his m otion for new trial. We will affirm as modified

. II. F ACTUAL B ACKGROUND 2 On November 13, 2015, at approximately 8:00 a.m., a twenty
- four

- yea r - old woman, Letty Mathow, 3 left her Fort Worth apa rtment to g o to nursing school. As Mathow walked down the stairs, she was approached by Dunn

— a person who lived in the same apartment complex and whom Mathow had met once before. Mathow stated that Du nn asked her if he could use her cell phone because he did not have a phone and he needed to make a phone call since he was being evicted. Mathow unlocked her phone and g ave it to Dunn. Dunn began walking and seemingly talking on the phone. Shortly thereafter, Mathow told Dunn that she needed her phone bac k because she had to go t o class to take a quiz. Dunn responded by asking Mathow if sh e liked watches. Mathow said that she did,

2 Because Dunn challenges the s ufficiency of the evidence concerning the intent element of the offenses, we set forth a detailed review of the evidence.

3 A pseudonym.3

and when she began following Dunn up the stairs, he grabbed her arm and pulled her into his apartment. 4 Once inside, Dunn locked the door and told Mathow to go upstairs to see the watches

. Mathow explained that she needed to go to class and said that Dunn could keep her phone

. Dunn then pulled out a screwdriver , threaten ed to shoot Mathow , and told her that “[she] wasn’t go ing anywhere

. ” Mathow

— who had her backpack when she was pulled into Dunn’s apartment

— remembered she had a knife in her backpack , and she got it out

. She told Dunn he needed to let her go, but Dunn again told her th at she wasn’t going anywhere. As Dunn

m ov ed toward M athow, she cut his lower arm. Dunn grabbed her and thr ew her to the ground

. As the two struggled on the ground, Dunn got on top of Mathow , straddled her, a nd tried to pull her shirt up. Still in possession of her knife, Mathow cut Dunn on h is shoulder. Dunn remained on top of Mathow and
press ed his knee against her throat to choke her

. Mathow pretended to lose consciousness , and Dunn lessened the pressure he was applying with his knee. Mathow scrambled up off the floor and ran for the doo r. But Dunn caught her, and their struggle resumed. Mathow slashed Dunn in his torso , and he “start ed freaking out saying he was going to die because he lost

-- he lost a lot of blood.”

4 Although Dunn was apparently staying in the apartment, his name was not on the lease , and he was considered by the assi stant apartment manager to b e an “unauthorized occupant.”4

At t his point, i n an odd turn of events, Dunn asked Mathow to h elp him and to not tell any one what had happened; Dunn told her he had five k ids and could not go to jail. Mathow told Dunn she was a nursing student , said she would help him, and told him to go g et some towels and her phone. When Dunn went to get the to wels, Mathow gr abbed her phone and her backpack, ran out of the apartment , and called 9

- 1

- 1. Paramedics arrived and treated Mathow for her injuries, including facial br uising , a swollen lip, and a br oken blood vessel in her
eye. She was covered in Dunn’s blood. In response to Mathow’s 9

- 1

- 1 call, Officer Joseph Harvick of the Fort Worth Police Department (FWPD) was dispatched to th e apartment complex. His field

- training partner, Officer Garcia, arrived with him

. At the apartment
complex office, they found Mathow shaky, scared, and covered in blood. Harvick spoke with Mathow and put out an alert for officers to be on the lookout for Dunn based on Mathow’s description of him

. Harvick confirmed at trial that as Mathow recounted the incident to him she did not mention t hat Dun n had pulled up her shirt ; but Harvick said Mathow told him she thought Dunn was going to rape her. Officer Sammie Brinegar of the FWPD was also dispatched to the scene and upon arrival searched for the suspect. Brinegar r ecei ved a call that a male matching Dunn ’s description was banging on apartment doors in a nearby apartment comple x and th at he appeared to be injured. Brinegar drove there and quickly spotted Dunn in a breezeway. W hen Dunn saw Brinegar approaching, Dunn sai d, “You got me. I give up.” Dunn asked Brinegar what crime he was5

being charged with and said he had not hurt anyone. Brinegar took Dunn back to the scene where he was treated by MedS tar EMTs and taken into custody. III. P ROCEDURAL B ACKGROUND 5
A Tar rant County g rand jury indicted Dunn for the offense s of aggravated kidnapping and attempted aggravated sexual assault , and appr oximately six months later, Dunn’s cases reached a third trial setting scheduled for June 26, 2017. On June 22, 2017 , the State uploaded a two
- hour video of a n interview the FWPD had conducted with Dunn. Dunn filed a motion for continuance because the State had uploaded the video for the first time only four days before trial , and Dunn ’s counsel needed more t ime to review the vid eo because, due to technical difficulties, he had been unable to access it for viewing until the day before trial. At the pretrial hearing held on the morning of trial, Dunn’s counsel explained the existence of the video had surprised him because he had filed a written discovery request and “ Michael

- Morton

- Act letter ” over one year earlier , and that even with three previous trial settings, the State had n ot produced the video earlier

. Dunn’s counsel explained that when he viewed the video for the first time the day before trial , he heard statements by Dunn during the interview that he had been unaware of because he knew only of Dunn’s statements i ncluded in the police offense report . Thus, Dunn’s trial counsel argued that the

5 Because Dunn alleges ineffective assistance of counsel, we set forth a detailed procedural background.6

State’s late production of the video necessitated a short two
- or three

- week continuance of the trial so he could c onduct additional investigation

. The p rosecutor acknowledged t hat the last

- minute uploading of the video

was the State’s mistake but explained that Dunn ’s counsel sh ould still have known about the video because it was referenced extensively in the police report

. The prosecutor explained t hat the State did not intend to introduce the video at trial , so that in any event, Dunn was not harmed. The trial court ruled tha t the video would be excluded from evidence for all purposes , including impeachment. Dunn was arraigned, and he pleaded not guilty

. T he State presented six witnesses at trial

— Mathow, Ha rvick, and Brinegar, as well as FWPD crime scene officers Susan Shor e and Laurie Scheiern and the assistant apartment manager, Shelli Dickey . Dunn d id not present any witnesses. Neither side objected to the jury charge , and the ju ry returned a guilty verdict for the offenses of aggravated kidnapping and attempted sexual assault, 6 and a finding that a scr ewdriver was a deadly weapon.

6 T he jury charge and verdict form returned b y the jury and read in open court conflict with the trial court’s written judgment regarding count two

. T he jury charge submitted and the jury found Dunn guilty of the offense of attempted sexual assault under section 22.011 of the Texas Penal Code , wh ile the trial court’s subsequent written “ judgment of conviction by jury” labeled the offense as attempted aggravated sexual assault under section 22.021 of the Texas Penal Code

. Thus , we modify the trial court’s written judgment of conviction to conform to the jury ’s verdict and reflect that Dunn was co nvicted of attempted sexual assault

. See Tex. R. App. 43.2(b); Mayes v. State , 536 S.W.3d 102, 112 (Tex. App.

— Amarillo 2017, pet. ref’d) ( reforming “ judgments to reflect that appellant was convicted of sexual assault ” and not aggravated sexual assault) ; s ee also Lopez v. State , No. 02

- 17

- 00341

- CR, 2018 WL 3297905, at *1 (Tex. App.

— Fort7

Dunn elected to have the trial court assess punishment, and t he court assessed his punishment at forty

- five years’ confinement for aggravated kidnapping and fifteen years’ confinement for a ttempted sexual assault. After Dunn filed his notice of appeal , he filed a motion for new trial and eventually a second amended motion for new trial , supported by his affidavit, in which he argued , among other things, that he had received ineffective assista nce of trial counsel. Despite Dunn’s request for a hearing, the trial court did not hold a hearing or rule on the motion for new trial , and it was overruled by operation of law. I V. W HETHER THE E VIDENCE IS S UFFICIENT TO P ROVE THAT D UNN I NTENDED TO I NFLICT B ODILY I NJURY ON M ATHOW OR TO S EXUALLY A BUSE H ER In his first issue, Dunn asserts that the evidence i s insufficient to prove he intended to inflict bodily in jury on, violate, or sexually abuse Mathow , which the State a lleged as the aggravating e lement of the aggravated kidnapping offense

. Dunn’s basic contention is that there was no evidence to show he intended to inflict bodily injury on Mathow, to violate her, or to sexually abuse her because her testimony regarding this element was inconsiste nt and unreliable.

Worth July 5, 2018, no pet. h.) (mem. op., not designated for publication) (“When there is a conflict between the trial court’s oral pronouncement and its written judgment, the oral pronouncement controls, and the solution is to reform the written judgment to conform to the oral pronouncement

. ”)

.8 A. Standard of Review When determining whether the evidence is sufficient to support a criminal conviction, we apply the well

- established standard set forth in Jackson v. Virginia , 443 U.S. 307, 316 (1979). Brooks v. State , 323 S .W.3d 893, 895 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the verdict and determine whether a rational jury could have found all the elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 313; Brooks , 323 S.W.3d at 899. The jury, as the fact

- finder, may make reasonable inferences from the evidence presented at trial in determining an appellant’s guilt. Hooper v. State , 214 S.W.3d 9, 14

– 15 (Tex. Crim. App. 2007). When there is conflicting evidence, we pre sume the fact

- finder resolved those conflicts in favor of the verdict and defer to that resolution. Jackson , 443 U.S. at 326; see also Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact’s determinations of a witne ss’s credibility and the weight to be given their testimony. Jackson , 443 U.S. at 319; Brooks , 323 S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding against the rare occurrence when a fact

- finder does not act rationally. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (citing Laster v. State , 275 S.W.3d 512, 517

– 18 (Tex. Crim. App. 2009)). B. Applicable Law A person commits an offense of aggravated kidnapping if he intentionally or knowingly abducts anothe r person with the intent to: inflict bodily injury on h er9

o r violate or abuse her sexually. Tex. Penal Code Ann. § 20.04(a)(4) (West 2011)

. To prove Dunn’s guilt of the alleged offense of aggravated kidnapping, the State was required to produce evidence that, viewed in the light most favorable to the jury’s verdict, was sufficient to allow a rational juror to conclude beyond a reasonable doubt that Dunn intentionally or knowingly abducted Mathow with the intent to inflict bodily injury upon her or to vio late or abuse her sexually. See Uddin v. State , 503 S.W.3d 710, 716 (Tex. App.

— Houston [14th Dist.] 2016, no pet. ); Wiley v. State , 820 S.W.2d 401, 407 (Tex. App.

— Beaumont 1991, no pet.)

. The penal code defines “abduct” as meaning “to restrain a
person w ith intent to prevent his liberation by: secreting or holding him in a place where he is not likely to be found; or using or threatening to use deadly force.” Tex. Penal Code Ann. § 20.01(2)(A)

– (B) (West 2011). Intent to sexually abuse a kidnapped victim may be inferred from the defendant's acts and remarks, and from the surrounding circumstances. See West v. State , 406 S.W.3d 748, 761 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref ’ d)

.

C. Application of the Law to the Facts In support of his contention that the evidence is insufficient to establish aggravated kidnapping, Dunn highlights inconsistencies between Mathow’s trial testimony and her written statement on the day of the incident

. 7 He argues

7 Although Dunn’s counsel presented Mathow with her written statement during cross

- examination and questioned her about it extensive ly, her written statement was never admitted into evidence and consequently, is not in the record before us.10

Mathow’s testimony is not credible. But the jury was apprised of any such inconsistencies when Mathow was questio ned during cross

- examination. She explained that when she wrote her statement, she was “still panicked about everything , ” and she “didn’t write down every detail because [her] mind was racing [.]” She testified that at trial, she was “more composed than [she] was when [she] wrote that written statement , ” and “a lot of details came back to [her] later that [she] didn’t remember when [she] wrote the written statement.” As the sole judge of the w eight and credibility of a witness’s testimony, the jury was free to believe all, none, or some of Mathow’s testimony. See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) , cert. denied , 488 U.S. 872 (1988) . Thus, although Dunn attempted to imp each Mathow’s trial testimony by comparing it to her written statement to police, viewing the evidence in the light most favorable to the verdict, a rational juror could resolve the inconsistency between Mathow’s statement and her trial testimony in favor of believing Mathow’s explanation that she was more composed at trial than she was immediately after the incident. And, viewing the evidence in the light most favorable to the jury’s verdict, Mathow’s testimony that Dunn forced her into the apartment, loc ked her in, stood between her and the apartment door, pulled out a screwdriver, 8 told her that she wasn’t going anywhere, fought with her to prevent her from leaving , straddled her, pulled up her shirt, and pressed his knee against

8 Dunn doe s not challenge the jury’s finding that he used or exhibited the screwdriver as a deadly weapon

.11

her throat to impede her breathing is sufficient evidence from which a rational juror could conclude beyond a reasonable doubt that Dunn committed the offense of aggravated kidnapping by abduct ing Mathow with the intent to inflict bodily injury on her or to violate or sexually ab use her. See Littleton v. State , No. 04

- 15

- 00594

- CR, 2017 WL 1337654, at *2 (Tex. App.

— San Antonio Apr. 12, 2017, no pet.) ( holding evidence sufficient to prove the abduction e lement of aggravated kidnapping) ; West , 406 S.W.3d at 761 (holding evidence suf ficient to prove intent

- to
- sexually

- abuse element of aggravated kidnapping). W e overrule Dunn’s first issue. V
. W HETHER THE E VIDENCE IS S UFFICIENT TO P ROVE THAT D UNN

C OMMITTED AN A TTEMPTED S EXUAL A SSAULT In his second issue, Dunn contends that no rat ional finder of fact could have found him guilty of attempted sexual assault because the only evidence of

an affirmative act that could have supported the intent element of th is offense was Mathow’s testimony that Dunn lifted her shirt during their struggl e

. Dunn contends that Mathow’s testimony that he pulled up her shirt fails to indicate a planned sexual assault and that the evidence is , therefore, insufficient to support his conviction for attempted sexual assault. The State argues that this case “mir rors” Dixon v. State , an unpublished case from the First District Court of Appeals in which the court held that the evidence was sufficient to support a conviction for attempted sexual assault. Nos. 0 1

- 04

- 01100

- CR, 01

- 04

- 01101

-12

CR, 2005 WL 2620541 (Tex. Ap p.
— Houston [1st Dist.] Oct. 13, 2005, no pet.) (mem. op., not designated for publication). A. Applicable Law A defendant commits the offense of sexual assault by i ntentionally or knowingly and wi thout the complainant’s consent (1) causing the penetration of the complainant’s anus or sexual organ b y any means, (2) causing the penetratio n of complainant’s mouth by his sexual organ , or (3) causing th e complainant’s sexual organ to contact or penetrate his mou th, anus, or sexual
organ . Tex. Penal Code Ann. § 22.02 1 (West Supp. 2017)

. To attempt to commit such an offense, Dunn must have specific intent , which is established by

an act amounting to more than mere prepa ration that tends but fails to a ffect the commission of the offense intended. Id. § 15.01 (We st 2011 ). The element “with specific intent to commit an offense” has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result. See, e.g. , Flanagan v. State , 675 S.W.2d 734, 745 (Tex. Crim. App. [Panel Op.] 1982 )

. Appellant’ s intent to complete the offense may be inferred from his acts. See Romo v. State , 568 S.W.2d 298, 304 (Tex. Crim. App. 1977)

.

B. Application of the Law to the Facts Mathow testified that she thought Dunn was going to rape her b ased on his
act of “moving [her] shirt up” while he was on top of her, straddling her after he had wrestled her to the ground. O n cross - examinati on, Mathow acknowledged that her only reason for thinking Dunn was attempting to sexually assault her was13

that he lifted her shirt while straddling her; but she agreed that she had failed to include this fact in her written statement to the police: Q. So y our only reason for thinking he’ s trying to sexually assault you is not included in your statement that same morning?

. . . . THE WITNESS: Correct. Dunn argues , as he did in his first issue, that because Mathow fail ed to include this fact in her initial statement to police , the evidence is insufficient to support his conviction for attempted sexual assault. A s discussed above, the inconsistenc ies between Mathow’s written statement and her trial testimony w ere both highlighted during her cross - examinatio n and explained by Mathow. The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. Dixon , 2005 WL 2620541 , at *5 (citing Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) )

. Viewing all of the evidence in the light most favorable to the verdi ct as we must , we hold that a rational juror could conclude that the cumulative for ce of all of the evidence

–– including Mathow’s testimony that D unn , a stranger, had pulled her into his apartment; had locked the door; had pulled out a screwdriver ; had thre atened her to prevent her from leaving ; had physically struggled with her ; had wrestled her to the ground; and had straddled her and pulled up her shirt

— all while Mathow was resisting and was cutting him with a knife

–– established beyond a reasonable doubt that Dunn had committed the14

offense of attempted sexual assault , including that he possessed the intent to sexually assault Mathow. See id. at *3

– 5. We overrule Dunn’s second issue.

V I. W HETHER D UNN ’ S T RIAL C OUNSEL P ROVIDED I NEFFECTIVE A SSISTANCE OF C O UNSEL In his third issue, Dunn contends that his trial counsel provided in effective assistance

. The “core” of Dunn’s argument is that his trial counsel’s preparation, investigation, and knowledge of applicable information was deficient in the pretrial p hase; but he also complains that during trial, his trial counsel demonstrated a lack of knowledge of the rules of evidence and failed to request a jury instruction for the lesser

- included o ffense of unlawful restraint. To establish ineffective assista nce of counsel, an appellant must show by a preponderance of the evidence (1) that his counsel’s representation was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Na va v. State , 415 S.W.3d 289, 307 (Tex. Crim. App. 2013 ). The second prong of Strickland requires Appellant to establish that, but for the trial counsel’s ineffective assistance, there is a reasonable probability that the outcome of his trial would have di ffered. 466 U.S. at 686

– 87, 104 S. Ct. at 2052. “[T]he analysis of the prejudice prong turns on whether the deficiency made any difference to the outcome of the case.” Riley v. State , 378 S.W.3d 453, 458 (Tex. Crim. App. 2012). “This is a heavy burden which requires a ‘substantial,’ and not just a15

‘conceivable,’ likelihood of a different result.” United States v. Wines , 691 F.3d 599, 604 (5th Cir. 2012). The United States Supreme Court in Strickland explained that the two Strickland prongs need not be addressed in order: there is no reason for a court deciding an ineffective assistance claim

. . . even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not deter mine whether couns el’ s performance was deficient before examining the prejudice suffered by the defendant as a resu lt of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. 466 U.S. at 697, 104 S. Ct. at 2069. Dunn argues that his trial counsel’s performance was deficient because he “failed to read the police report, was unprepared to go to trial, was unaware of his client’s i nterview with police, [was] ignorant of case law, and failed to reque st a lesser included offense.” Dunn surmises that his counsel failed to read the police report (despite counsel’s statement to the contrary in the record) because, if he had read it, h e would have been aware of the existence of Dunn’s videotaped statement to police. Assuming without deciding that counsel’s performance in this regard did meet the deficient

- performance prong of Strickland , nonetheless Dunn’s ineffectiveness argument fail s because the trial court excluded Dunn’s videotaped statement to the police for all purposes. There is not a reasonable probability that but for this alleged deficient performance by Dunn’s counsel the16

result would have been different . See Strickland , 4 66 U.S. at 687, 694, 104 S. Ct. at 2064, 2071

. Dunn argues generally that his trial counsel’s performance was deficient because he was not prepared to go to trial. This contention is based on counsel’s alleged failure to read the police report, failure to visit the crime scene, and fa ilure to interview witnesses. Assuming without deciding that counsel’s performance in th ese respects does meet the deficient

- performance prong of Strickland

, nonetheless Dunn’s not

- prepared

- to
- go - to
- trial ineffectiveness
argu ment fails the prejudice prong of Strickland . Counsel’s alleged fa ilure to read the police report, alleged failure to visit the crime scene , and alleged failure to interview witnesses, even if constituting deficient performance, nonetheless fail
to meet t he prejudice prong of Strickland because the record does not demonstrate that but for these errors, the result would probably have been different; to the contrary, no indication exists that examination of the crime scene would have contributed to Dunn’s de fense , and no indication exists that any witness was present in the apartme nt other than Dunn and Mathow. Thus, the record does not reflect a reasonable probability that but for these alleged deficiencies by Dunn’s counsel , the result would have been diff erent . See Strickland

, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2071

. Finally, Dunn argues that his counsel was ineffective because he failed to request an instruction on the lesser included o ffense of unlawful restraint. The offense of u nlawful restrai nt may be a lesser included offense of aggravated17

kidnapping as that offense was alleged in Dunn’s indictment

. 9 But a lesser included offense instruction is required only when the evidence establishes that the lesser included offense is “a valid, rational alternative to the charged offense.” Frank , 2011 WL 379041, at *2 (quoting Hall v. State , 225 S.W.3d 524, 535

– 36 (Tex. Crim. App. 2007) )

. Here, as set forth above, we have discussed the evidence supporting the jury’s finding that Dunn committed the offe nses of

9 As explained by the Beaumont Cour t of Appeals: A person commits the offense of unlawful restraint when he intentionally or knowingly restrains another person. Tex. Penal Code Ann. § 20.02(a) (West 2003). Aggravated kidnapping occurs when a person intentionally or knowingly abducts anoth er person with the intent to inflict bodily injury on the other person or to violate or abuse the other person sexually. Id. § 20.04(a)(4). To abduct a person means to restrain him with the intent to prevent his liberation. Id. § 20.01(2) (West Supp. 2010 ). Chapter 20 of the Texas Penal Code defines the term “restrain ” to mean “to restrict a person’ s movements without consent, so as to interfere substantially wi th the person’ s liberty, by moving the person from one place to another or by confining the per son.” Id. § 20.01(1). Restraint is without consent if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A). Thus, proof of being restrained, which is the act required to prove unlawful restraint, is an element that can also be use d to prove kidnapping. Since all of the elements of the lesser offense, unlawful restraint, are included within the proof required to prove a claim of aggravated kidnapping, as th at offense was alleged in Frank’ s indictment,

. . . we conclude that unlawfu l restraint is a lesser

- included offense of aggravated kidnapping. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Jenkins v. State, 248 S.W.3d 291, 298, n. 9 (Tex. App.

— Hou ston [1st Dist.] 2008, pet. ref’ d) (citing Anderson v. State, 12 5 S.W.3d 729, 731 (Tex. App.

— Texarkana 2003, no pet.)). Frank v. State , No. 09

- 09

- 00369

- CR, 2011 WL 379041, at *2 (Tex. App.

— Beaumont Feb. 2, 2011, pet. ref’ d) (mem. op., not designated for publication)

.18

aggravated kidnapping and attempted sexual assault; those facts show that he asked Mathow to use her phone, lured her to the apartment by refusing to return it, forced her into the apartment, a place where she was unlikely to be found

–– which is not an element of unlawful restraint

— locked the apartment door, refused to return her phone, physically attacked her, pressed his knee against her throat, straddled her, and pulled up her shirt. There is no evidence from which a rational jury could conclude that if Dunn was guilty, he was guilty only of unlawful restraint. See id

. Accordingly, even if Dunn’s counsel could have requested submission of an instruction on the lesser included offense of unlawful restraint, the record does not reflect a reasonabl e probability that but for counsel’s failure to do so , the result would have been different . See Strickland , 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2071

. Because Dunn has not articulated and our review of the record does not show that his counsel’s al leged deficient performance prejudiced Dunn’s defense as required by Strickland’s second prong , we overrule his third issue. See 466 U.S. at 687, 104 S. Ct. at 2064. VI I
. W HETHER THE T RIAL C OURT A BUSED ITS D ISCRETION IN D ENYING A H EARING ON D UNN ’ S M OTION FOR N EW T RIAL In his fourth and final issue, Dunn asserts that the tria l court abused its discretion by denying and failing to conduct a hearing on his motion for new trial alleging ineffective assistance of counsel

.19 A. Standard of Review and Appli cable Law A hearing on a motion for new trial is not an absolute right. Smith v. State , 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). We review a trial court’ s denial of a hearing on a motion for new trial for an abuse of discretion. Hobbs v. State , 298 S.W.3d 193, 200 (Tex. Crim. App. 2009). A trial court abuses its discretion by denying a hearing on a motion for new trial if the motion and accompanying affidavits (1) raise matters that are not determinable from the record and (2) establish reasonable g rounds showing that the defendant could potentially be entitled to relief. Id. at 199 ; King v. State , 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)

. “B efore [a defendant] will be entitled to a hearing on his motion for new trial alleging ineffective assis tance of counsel, [he] must allege sufficient facts from which a trial court could reasonably conclude both that counsel failed to act as a reasonably competent attorney and that, but for counsel’ s failure, there is a reasonable likelihood that the outcome of his trial would have been different

. ” Smith , 286 S.W.3d at 34 0

– 4 1 ; see also Reyes v. State , 849 S.W.2d 812, 816 (Tex. Cri m. App. 1993) (explaining that affidavits used to support appellant’s motions must reflect that reasonable grounds exist for grant ing relief). When a defendant’s motion for new trial asserting ineffective assistance of counsel fails to explain how counsel’s allegedly unprofessional errors prejudiced him , he has failed to show that but for counsel’s deficiency the result would have b een20

different and is not entitled to a nondiscretionary hearing on his motion for new trial

. Smith , 286 S.W.3d at 34 0

– 4 1

.

B. Application of the Law to the Facts Dunn’s motion for new trial was supported by Dunn’s affidavit. Neither Dunn’s motion f or n ew trial nor his affidavit allege how the outcome may have differed but for his counsel’s alleged unprofessional errors. Because Dunn ’s motion for new trial failed to allege or argue prejudice

— that is, but for his trial counsel’s allegedly deficient perfo rmance , the result wo uld have been different

— the trial court did not abuse its discretion by not conducting a hearing on the motion. See id. Accordingly, we overrule Dunn’s fourth issue. VIII
. C ONCLUSION Having modified the portion of the trial court’ s judgment that erroneously listed Dunn as having been convicted of “attempted aggravated sexual assault”
to reflect that Dunn was convicted of “attempted sexual assault , ” h aving held that the evidence is sufficient to support Dunn’s convictions for aggrav ated kidnapping and attempted sexu al assault; and having held that hi s trial counsel ’s assistance was not unreasonably ineffective and that the trial court did not abuse its discretion by failing to hold a hearing on Dunn’s motion for new trial, we affirm the trial court’s judgment as modified

. See Tex. R. App. P. 43.2(b).

PER CURIAM PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.21

DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 23, 2018